Judge tosses case filed by Pima County Election Department against Democratic Party watchdog
Becomes second citizen recently cleared of charges following arrests while observing elections...
By Brad Friedman on 4/16/2009, 4:36pm PT  

[Updated at bottom of article with video of trial testimony and the judge's dismissal of the case.]

Along with everything else that's been going on over the past week or two in the criminal investigation hand count of the 2006 Pima County (Tucson), AZ, special election (see our detailed special coverage here and here, with a bit of followup coming tonight, by the way. [UPDATE: Here's that late report.]), local election integrity watchdog John Brakey has had a trial of his own to contend with this week, following his arrest last September, while serving as an official observer during a post-election hand-count "audit" of the state's primary election on behalf of both the Democratic and Libertarian Parties.

As The BRAD BLOG reported at the time, Brakey had noticed that a number of ballot bags, selected for the hand-count, had missing or broken security seals on them. When he asked about them, he was promptly arrested on the orders of Pima's "Election Director Gone Wild" Brad Nelson, a Republican and long-time foe of Brakey's.

The case against Brakey, heard in court this afternoon, was dismissed by Judge Luis Castillo after the county presented its evidence on the charges of "trespassing," as we were informed today by Brakey and his attorney Bill Risner, who wouldn't even need to plead their own case to the judge today...

"The judge dismissed the case on motion of state's evidence, because they hadn't produced a prima facie case," Risner told The BRAD BLOG by phone just after the hearing. Moreover, the judge found "Nelson over-reached as he had deprived the Libertarians of an observer."

Risner says the court found that Brakey's actions had led to important improvements in the procedures implemented by the Pima County Department of Elections. The attorney also tells us that he plans to take civil action against Nelson. "We'll probably be issuing a notice of claim that we'll sue him for personal damages."

Brakey was ecstatic. "We really won big," he said today. "We didn't even have to put up a defense" since the judge simply dismissed the county's case after they'd heard it. He added that Nelson "really made a fool of himself" on the stand, and promised that he'd send us some video from Nelson's testimony, and the judge's admonishments soon. (We'll add it as an update when we receive it.)

Brakey becomes the second arrested election integrity advocate in recent weeks to see such charges dismissed following arrests in the course of attempting to observe post-election counting. This past March, Ellen Brodsky, a Florida election integrity advocate --- and a candidate for Broward County Supervisor of Elections last November --- saw all charges dropped against her, following her arrest last year as she was attempting to oversee the post-election tabulation of her own election.

Last year, Brakey was quoted in video coverage of his arrest, by Tucson's local ABC affiliate, discussing his "five C's: character, capacity, credibility, civility, and...citizenship." He's added at least one "C" to the list since then, as he explained to us this afternoon: "Courage. Courage is needed to stand up and take on these bullies to regain and rebuild our democracy."

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To hold us over until we have video of Nelson on the stand during today's short-lived trial, here's The BRAD BLOG classic of Brad "Election Director Gone Wild" Nelson, completely flipping out following a question from Brakey at a public meeting in February of 2006 (original exclusive coverage and full transcript here)...


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LATE UPDATE: David Safier, a witness for the defense who was not called today since the judge ended the trial before the defense put on its case, covers today's court ruling, and offers an inside perspective on what led to the arrest in the first place, as he was an auditor at last September's hand count when Brakey was hauled away in cuffs. [Disclosure: Safier also has guest blogged about the Pima RTA election for The BRAD BLOG]. In addition to explaining what happened last September, Safier writes:

Brakey is something of a bull in a china shop. When he sees a problem --- and he sees plenty in Pima County elections --- he charges in without worrying what Emily Post might think. But an election system isn't a Wedgewood teacup. It has to be robust enough to withstand rough scrutiny.
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Brad Nelson comes out looking bad almost every time his work is called into question. And today, in a court of law, Nelson came out looking bad once again.

UPDATE 4/17/09, 11:11am PT: Here's the video compilation of Nelson's testimony and the ruling of Judge Castillo afterwards yesterday, Video compilation courtesy of J.T. Waldron, producer of the forthcoming Fatally Flawed, a documentary film on the entire years-long Pima County election nightmare/struggle...

The text of Judge Castillo's ruling (as heard above):

Elections are the hallmark of democracy. We have to therefore protect the integrity of the election process. Certainly as an elected official, I can certainly appreciate that. When I look at the whole context of this, when I consider the testimony that was presented to me, I find that Mr. Nelson has over-reached. And the resulting actions would not have been charged, but for the fact of this over-reaching by Mr. Nelson. So I am finding at this time there is no substantial evidence to merit conviction. I'm releasing you from this case, and the matter is concluded.

Attorney Bill Risner's no-holds barred assessment of Nelson today, via email:

My conclusion is stronger than the judge's measured conclusion that Nelson had "overreached." He needs to be fired. He is not merely a serial liar. He has serious personality control problems that disqualify him from working with political parties. He is simply a power mad lunatic, at a minimum.

Calls for the removal of Nelson have increased following last years' arrest of Brakey. The hot-headed Nelson is an appointed, not elected, official. He is appointed by the County Manager who himself is also appointed, rather than elected, by the Pima Board of Supervisors.

As we reported last year, Pima County Supervisor Ann Day said, after a Board of Supes meeting following the arrest: "We've taken a lot of security precautions, but there are too many problems, and they keep happening...I think we've reached a point where we need a change in leadership. There needs to be trust between the public and the Division of Elections."

Why Nelson is still in place after all of these continuing nightmares, we couldn't tell you. It's certainly long overdue that the Supes take action on behalf of the people to remove both Nelson and County Manager Chuck Huckleberry from the jobs that they've clearly bungled for years.

As long promised, The BRAD BLOG has covered your electoral system 2008, fiercely and independently, like no other media outlet in the nation. Please support our work with a donation to help us keep going. If you like, we'll send you some great, award-winning election integrity documentary films in return! Details on that right here...